How to Handle Protective Orders in Family Violence Cases

A protective order does not mean you’re guilty of a crime, but it can affect how your court case plays out.

Today, I’ll be discussing protective orders in family violence cases, including the different types, their effects on a criminal trial, and the punishments for violations. If you find yourself subject to a protective order, it’s crucial to understand what they are and how they work, so let’s get started.

What is a protective order?

A protective order is a civil document designed to keep a victim of family violence, sexual assault, stalking, or human trafficking safe from their abuser. The legal language can get dense, so we’ll start from this definition.

You might say, “Well, I’m not an abuser. I didn’t abuse anyone, so how can a court decide to put a protective order on me?”

That’s a fair point. Protective orders are not convictions, nor does every protective order require that the alleged abuser commit a crime.

On the other hand, and I’m going to say this a lot, how we deal with protective orders often has a big impact on the outcome of family violence cases. So, you’ll notice that when we talk about these orders, the cart seems to come before the horse—an unspoken presumption of guilt. Don’t worry. We’re going to deal with that. Optics are always going to be a part of the legal system because it’s a system created and run by people.

In Texas, there are three different types of protective orders.

1. Temporary ex parte protective orders

Temporary ex parte protective orders are dispensed by a court of law under Texas Family Code § 83.001, and they give immediate protection from a potential abuser, issued without the abuser’s prior knowledge.

In this case, the cart literally comes before the horse. If you are designated as a potential abuser, don’t expect to be notified.

The good news is that temporary ex parte orders are, as the name implies, temporary; they’re typically used in emergency situations when there’s broad agreement that there is a clear danger to an individual. This order normally lasts 20 days.

2. Final protective order

The final (also called permanent) protective order is described in Texas Family Code § 85.001. It’s a court order issued after a full hearing and is more permanent than the temporary ex parte order. It can last up to two years, or even longer if there’s been serious bodily injury or multiple incidents.

3. Magistrate’s order of emergency protection

A “magistrate’s order of emergency protection” is issued directly after an arrest, and it’s designed to protect a potential victim from immediate harm. Orders usually last 31-91 days, according to the Texas Code of Criminal Procedure Art. 17.292.

A “protective order” is not a “restraining order.”

You may have heard these two terms used interchangeably. It’s common to hear on the street and read on the internet. That’s dead wrong.

Restraining orders typically arise from non-domestic harassment, stalking, or civil disputes, and violations are not considered to be life-threatening to the individual who requested the order. First-time violations could result in a Class A misdemeanor, most likely a fine.

Protective orders, on the other hand, are associated with family violence. Violating this type of order is an entirely different charge. In Texas, violations require a police response. It is a criminal offense.

If probable cause exists that the violator of the order assaulted or threatened the petitioner or entered prohibited spaces or is in possession of a firearm, the violator can be arrested without a warrant, and, in many cases, just one statement from a witness is enough to trigger an arrest.

Even if you are expressly invited by the petitioner (the person who requested a protective order against you) to meet them at their home, or a coffee shop, or at a park bench, it doesn’t matter. It’s still a Class A misdemeanor violation punishable by up to a year in county jail and a $4,000 fine, and that’s for first-time offenses.

Repeat violations quickly turn into third-degree felony charges, so when it comes to how you behave, who you talk to, and where you go after receiving notice, the only person you need to be listening to is a qualified attorney.

Contact a lawyer immediately upon receipt of an order.

Legal representation ensures that your rights are protected, that you understand the situation, and, most importantly, that you will not inadvertently incriminate yourself.

Here’s what happens when you get a protective order.

1. You attend a hearing.

You’ll be required to attend a hearing in which both parties present evidence and their arguments. This hearing is used to determine whether the protective order should be extended, modified, or dismissed. Note that in some cases, a temporary ex parte protective order is issued before a hearing.

2. The judge considers the evidence.

During the hearing, the judge will consider any testimony, documentation, or witness statements. Here, the defendant has the opportunity to contest the order.

3. A final protective order may be issued.

If the court finds sufficient grounds, a final order may be issued, which, as mentioned, could last for two years or longer.

The court may also decide not to proceed with the order, and the case will move forward without it.

How will it impact the outcome of your case?

Protective orders are significant in their own right, but just as important is the role they play in shaping the legal proceedings that follow. They influence the strategies employed by both the defense and prosecution.

Defendants face increased scrutiny.

The presence of a protective order may cause the judge to put stricter conditions on bail or limit certain freedoms.

Defendants are allowed limited communications, but there’s always a clear line to legal counsel.

Protective orders often restrict one’s ability to communicate with the alleged victim. This can be frustrating and demoralizing, especially when the terms of the order sever communication between you and your children, parents, and loved ones.

Protective orders unconsciously bias some jurors against the defendant.

When the jury becomes aware that an order has been issued, it can add weight to the allegations in the minds of jurors, even if it is unconscious.

Violating a protective order comes with serious consequences—don’t do it.

If you violate a protective order in Texas, you may be charged under Texas Penal Code § 25.07.

The offense is a Class A misdemeanor, with penalties of up to a year in jail and a $4,000 fine. If the person has prior convictions or violates the order multiple times, the offense may escalate to a third-degree felony. Violation of a protective order is going to put you at a major disadvantage for defence against assault charges or a family violence case.

Get legal help now from Gold Legal, PLLC.

We’re a dedicated criminal defense firm specializing in family violence and representing individuals who have had protective orders placed on them.

— Kandi Gilder, Attorney at Law